Now the second, final argument this trip. (There are other arguments this week, some interesting enough to attend. But I ran out of time to prepare for them or attend them.) Holt v. Hobbs is much simpler than Heien v. North Carolina, because one side’s arguments are “almost preposterous”. So this post is (slightly) breezier.

This line was a bit different from the Heien line: more people attending for (this) argument, fewer people present simply for opening day. The line was possibly less talkative (and I still had briefs to read, although I never intended to read all twenty-one [!] of them), but there were still good discussions with local law students, the author of one of the amicus briefs (which I naturally read standing in line), and others. Good fun again.

Another day, another line

Gregory Holt and his would-be beard

Gregory Holt is a Muslim inmate in the Arkansas prison system. (He actually goes by Abdul Maalik Muhammad now; Gregory Holt is his birth [legal?] name. News stories and legal discussion refer to him as Holt, and in some sense I want this in that corpus, so I use Holt here.) Holt interprets Islamic law to require he have a beard.

Allah’s Messenger said, “Cut the moustaches short and leave the beard (as it is).”

A small request. Reasonable? Quoting the ever-colorful Justice Scalia in oral argument, “Religious beliefs aren’t reasonable. I mean, religious beliefs are categorical. You know, it’s God tells you. It’s not a matter of being reasonable.” Reasonable or not, a beard isn’t an obviously dangerous request like, “My religion requires I carry a broadsword.” And as a conciliatory gesture Holt moderated his request to a half-inch beard.

No matter how many arguments I go to (this makes ten), the sunrise over the Court will never get old

Arkansas: no beards

Arkansas doesn’t permit prisoners to grow beards (except to the natural extent between twice-weekly shaves). There’s an exception for prisoners with medical conditions (typically burn victims), shaving only to 1/4″. But no religious exceptions.

Arkansas’s justifications are three. A beard could hide contraband. A bearded prisoner can shave to disguise himself, hindering rapid identification and perhaps aiding an escape (see The Fugitive). And it’s a hassle measuring half-inch beards on everyone.

The law’s requirements

Twenty-odd years ago, Holt would likely have been out of luck. Turner v. Safley permitted regulations “reasonably related to legitimate penological objectives”. And Justice Scalia’s Employment Division v. Smith says that as a constitutional matter, generally-applicable laws may burden religious exercise, with objectors having no recourse. It’d be an uphill slog getting past the no-beard rule.

But in the mid-1990s to 2000, Congress near-unanimously statutorily protected some exercises of religion, even against generally-applicable laws. (Lest it be thought this was protection specifically, or only, of Christian beliefs: the original motivating case was a Native American group that used a hallucinogen for sacramental purposes.) In particular Congress enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA, usually “ruh-loo-pah”), stating:

No government shall impose a substantial burden on the religious exercise of [a prisoner], even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—

is in furtherance of a compelling governmental interest; and

is the least restrictive means of furthering that compelling governmental interest

Now, prisons may regulate in pursuit of normal prison aims. But regulations can’t “substantial[ly] burden” a prisoner’s “religious exercise”, regardless how important the exercise is(n’t) in the prisoner’s belief system, even if the regulation is general and doesn’t target religion — unless the government demonstrates the regulation satisfies a “compelling interest” that can’t be addressed less restrictively. This phrasing comes from strict scrutiny: the strongest form of review American courts apply to laws. Unlike the Turner/Smith regime, these requirements have teeth.

Almost go-time to advance onto the plaza to receive line numbers

Evaluating Arkansas’s no-beard rule applied to Holt

As a threshold matter, Holt must wish to engage in “religious exercise” that is “substantial[ly] burden[ed]”. Once Holt claims the belief, courts won’t second-guess it. They will consider whether the belief is sincere: no opportunistic exception requests for unwarranted benefits. But no one contests the sincerity of Holt’s beliefs. If Holt refuses to be shaved, he’ll suffer various disciplinary actions and bad consequences: “loss of privileges, punitive segregation, punitive work assignments, and loss of good-time credits”. Certainly a substantial burden.

Now Arkansas must demonstrate — with evidence, persuasively — both a compelling interest, and least restrictive means. Put another way, does Arkansas’s regulation pass strict scrutiny?

It’s hard to say Arkansas has a compelling interest when the rules in forty-odd prison systems nationwide, and various penal code recommendations, either impose no restrictions on beards among prisoners, or would allow Holt his 1/2″ beard. Arkansas is an outlier. And Arkansas’s medical exemption undermines the argument that no beards must apply universally (compelling interests often brook no exceptions). Similarly, Arkansas can’t use the least restrictive means when forty jurisdictions use even less restrictive means.

Arkansas might justify their policy through unique local experience. But Arkansas concedes “no example” of anyone hiding contraband in a beard. (With the “caveat” that “Just because we haven’t found the example doesn’t mean they aren’t there.” A strong argument!) Disguise arguments could be addressed by taking multiple pictures (as other systems do). And measuring the few inmates requesting religious exemptions wouldn’t be much harder than measuring medical-exception beards.

Arkansas could “demonstrate” strict scrutiny is satisfied by providing evidence of evaluation and reasoned rejection of other states’ policies. But Arkansas previously admitted it considered no other systems (eliciting an acerbic suggestion to try “the common practice of picking up the phone to call other prisons”).

Arkansas could argue that Arkansas’s system, that houses many prisoners in barracks and not separate cells, justifies no beards. But such systems exist elsewhere, and no beards applies in Arkansas’s non-barracks prisons.

In short, Arkansas has demonstrated neither a compelling interest, nor least restrictive means, and it has done so presenting no evidence. Ouch.

In lower courts

An obvious question: why must Holt fight this in court if he’s so obviously right? Basically, a few lower courts are giving far too much deference (a word found in legislative history but not in the statute) to the mere assertions of prison officials, without requiring them to “demonstrate” much of anything. The magistrate judge described officials’ claim that Holt might hide something in his half-inch beard as “almost preposterous” — just before deferring to those claims. Courts below the Supreme Court similarly gave too much deference to prison officials’ bare assertions unsupported by any data.

At the Supreme Court

One indicator of lopsidedness here is the brief count, and authors, on each side. Holt has seventeen other briefs on his side, representing a wide variety of interests: Jewish, Christian, Islamic, Hindu, Sikh, American Indian and Hawaiian, former prison wardens, former corrections officials, Americans United for Separation of Church and State (whose brief, incidentally, is interesting but quite surpassed by later events), sociologists, and the United States government (and others). The authors include a who’s-who of religious freedom organizations. Arkansas has one brief on its side: from eighteen states, who don’t defend Arkansas’s policy as much as try to preserve deference as an element to consider (presumably so those states’ prison systems can be run with a freer hand).

The Court accepted this case in unusual circumstances. Holt filed a hand-written petition requesting Supreme Court review, through a special system not requiring him to pay filing fees from non-existent income. Such petitions are almost never accepted. (Holt basically won the lottery. That said, when I read his brief after the case was accepted, the form was unusual, but the discussion and presentation seemed orthodox.) It’s pretty clear the Court accepted this case to lopsidedly, probably unanimously, overturn the Eighth Circuit. The Supreme Court doesn’t take cases to correct errors, but that’s what they’ll do here.

Number 12 today: slipping back slightly, but as far as I’m concerned this means I had perfect timing

Deference

First, what does deference (if it even matters — the term appears only in legislative history, not in the law as enacted) look like in the context of strict scrutiny? These are somewhat contradictions in terms. Yet the Court somehow must make sense of this.

Line-drawing

Second, while beards are easy to decide, other issues (Sikh turbans that actually can conceal things, for example) will require different considerations. How can the Court provide general guidelines to address these situations? The Court doesn’t want to be in the business of reviewing every prison official’s (better-“demonstrated”) decisions. (Scalia bluntly put it this way: “Bear in mind I would not have enacted this statute, but there it is.” Recall he wrote Employment Division v. Smith, shutting off constitutional religious exemptions from generally-applicable laws. Something to remember any time Scalia’s stereotyped as reflexively pro-religion.) But Congress opened up that box, so courts have to live with it.

Almost mocking questions

Arkansas’s position is not easily defended. Not surprisingly, then, questions and comments almost made fun of Arkansas’s position. To the assertion that “Just because we haven’t found the example doesn’t mean they aren’t there”, Justice Breyer replied, “There are a lot of things we’ve never found that might be there and I’ll refrain from mentioning them. You see them on television, a lot of weird programs from time to time.” (Presumably referring to things like Sasquatch, the Loch Ness Monster, Ghost Hunters, and similar.) And later, Justice Alito proposed an alternative means of detecting beard contraband: “Why can’t the prison just…say comb your beard, and if there’s anything in there, if there’s a SIM card in there, or a revolver, or anything else you think ­­can be hidden in a half-inch beard…” (emphases added). Both lines made the audience erupt in laughter.

The post-argument crowds, framed by visitor lines

Why Arkansas fights

It’s unclear to me why Arkansas is still arguing. They won in lower courts. But once the Court granted the in forma pauperis petition, Arkansas should have folded. The law is too clearly against them, and this Court won’t give them a pass. Arkansans should be outraged that their state is wasting taxpayer money to defend this system. (And on the policy’s merits, outraged at the petty bureaucratic nonsense at best, and bigotry at worst, it represents.)

One plausible, potentially upsetting, explanation is provided by former prison wardens: “Political Considerations May Underlie Prison Officials’ Resistance to Accommodations of Religious Practices.” These wardens had been sued (and lost) in various cases cited in briefing, and they candidly admitted that their positions were partly attributable to “political realities”.

Conclusion

Arkansas will lose. The only remaining question is how. (And as before, if I’ve made any mistakes in this discussion, please point them out.)

It’s that time again: time to visit Washington, D.C. for more Supreme Court bobbleheads and oral arguments! I’m not going to try assembling the bobbleheads til I get home, so no pictures of them yet. Just (the first) oral argument for now.

OT2014 opening day at the Court

Opening day!

Today’s argument was the first of the October 2014 term. This timing was of particular interest to me: I’ve been to arguments at other times of the year, but I figured opening day might be a little different. It was, although not significantly.

The public line outside included a few people who come every year to opening day arguments — with one person who’d been doing it for twenty-five years. (SCOTUS groupies! 😀 ) If I ever make it back for an opening day it’ll be interesting to see him again. Unlike past years I didn’t do much case-reading while waiting in line; too much interesting discussion and general camaraderie.

Early morning camera crews outside the Court

Inside the Court the difference was limited to Chief Justice Roberts announcing the close of the October 2013 session and the opening of the October 2014 session — essentially none, just another day at the office.

One morning in 2009, two men, one of them Nicholas Heien, were driving through North Carolina. Sergeant Darisse noticed them as they passed by and found their behavior suspicious, so he started following them. Eventually Sergeant Darisse observed a reason to pull them over for violating a traffic law. (As a practical matter it’s impossible to drive for any length of time in perfect compliance with traffic law. But under Whren v. United States it’s perfectly acceptable to make “pretextual” stops, where the stop is really being made for some reason other than the immediate violation noticed.) The reason here was that Heien’s car had a malfunctioning stop lamp — that is, when the brakes were applied, only one stop lamp went on (and the other did not).

Sergeant Darisse and another officer asked the two men in the car a few questions, and they became more suspicious when the answers diverged. Sergeant Darisse asked if he could search the car. The driver said he’d have to ask Heien (as owner of the car); Heien said yes.

Pictures in pictures, from the front of the line; note the scaffolding on the Capitol in the distance

A brief interlude

Before we proceed further, I would like to emphasize something.

When an officer asks you if you consent to a search, you say NO.

If the officer is asking you, (at that moment) he needs your permission to do it. You do not have to grant permission. You will gain nothing if you grant consent. You’re not going to be on your way any faster; searching properly takes longer than not searching. And you never know what he might turn up. If it’s your vehicle, perhaps you had a passenger recently who left something in your car, that wouldn’t look good: drugs, drug paraphernalia, or a Justin Bieber CD. Practically, you can’t know what he’ll find. And even if you do: you’re not qualified to say what might be considered evidence of a crime, or even something that might be used against you in court for some other reason.

What if the cop promises it might get you moving faster, or tries to suggest you have nothing to hide, or whatever? Don’t believe him. Cops can legally lie to you. His verbal promise is worth the paper it’s printed on. Don’t talk to cops. My understanding is consent can’t be coerced or tricked. But good luck arguing you were tricked into it, given weasel words like “might” and it usually being your word against theirs.

Back to the facts: the result of the search

Of course (because otherwise we wouldn’t be hearing this case), the search found drugs. So now a traffic stop’s turned into a charge for trafficking cocaine. See what consenting to a search does? (Why would Heien have consented to a search, despite presumably knowing there were drugs in the car? Probably because he was legally intimidated or guilted into it. Again: Do Not Consent To Searches.)

In lower North Carolina courts

Heien challenged the stop on a number of grounds, only one relevant here: that the initial reason for the stop wasn’t valid. North Carolina law requires a working “stop lamp” (singular; emphasis added). Heien’s car had a working stop lamp. If the law is properly read that way, there was no valid reason for the initial seizure, and so by fruit of the poisonous tree the result of the search here can’t be admitted in court. (Glossing over a few details, but I’ll circle back to them.)

The trial court disagreed with Heien, but on appeal a North Carolina court of appeals agreed. The law required only one working stop lamp. And a law requiring vehicles “shall have all originally equipped rear lamps or the equivalent in good working order” didn’t apply, because stop lamps were not “rear lamps”. (“Surprising”, as the dissenters at the North Carolina Supreme Court later noted — but also fairly justified by careful reading of the statutory text.)

The court of appeals then concluded that Heien’s seizure was not permissible under the Fourth Amendment, which prohibits “unreasonable” seizures — and a seizure based on a misunderstanding of law is inherently not reasonable.

At the North Carolina Supreme Court

North Carolina didn’t contest the validity of the traffic law interpretation. Until North Carolina rewrites its laws (which, to be fair, weren’t originally buggy — back in the day only a single stop light wasn’t unusual, it’s just the law hasn’t been updated since 1955), at least in some parts of North Carolina you can legally drive with a broken stop lamp, if you have another that works. Instead North Carolina argued that the stop was a “reasonable” Fourth Amendment seizure: the officer made an “objectively reasonable” mistake of law, that had a “foothold” in the text (whatever that precisely means), which should be enough for the seizure to be reasonable.

Another interlude: good faith

Now an interesting quirk arises. Per United States v. Leon and subsequent precedents, the exclusionary rule that prevents admitting evidence obtained through a Fourth Amendment violation is riddled with holescontains a good faith exception for various cases where a violation occurs, but it’s deemed society’s interest in not ignoring the usually-obvious truth trumps the exclusionary rule’s benefits to individuals. So for Heien to get off, he has to argue that the Fourth Amendment was violated and that he’s entitled to the remedy of suppression and that no good faith exception applies.

Except that’s not the rule in North Carolina. North Carolina’s Supreme Court has interpreted some combination of the Fourth Amendment and its own constitution (I’m not 100% sure on the details) to contain no good faith exception. If the police violate the Fourth Amendment and you’re prosecuted under North Carolina law, evidence from that violation must be suppressed. (But see two paragraphs down.)

So Heien’s job is much easier. He needs a Fourth Amendment violation, but he doesn’t also need courts to feel “sorry enough” for him to suppress the evidence: North Carolina’s already done it for him.

Back to the North Carolina Supreme Court

North Carolina’s argument that the seizure, as an “objectively reasonable” mistake of law, was a valid Fourth Amendment seizure succeeded at the North Carolina Supreme Court by a 4-3 vote. (North Carolina’s not the first court to consider this question. Nine circuit courts have considered this question. Only one has adopted the North Carolina Supreme Court’s position.) Note carefully how the North Carolina Supreme Court in effect created an alternative version of the good faith exception, just without calling it one. (The dissenters specifically called them on this.) There’s increasing pushback in North Carolina against the lack of exception, culminating in 2011 in a statutory good faith exception and a legislative call for their court to reconsider the constitutional lack of such an exception. (I don’t know the extent to which that statute and the constitutional interpretation cause conflicts North Carolina courts will have to sort out. In any event the statutory exemption can’t apply retroactively to Heien.)

At the United States Supreme Court

The (United States) Supreme Court agreed to take the case to decide whether a cop misunderstanding the law, is enough to justify a search. It didn’t decide to take on the applicability of a good faith exception to such a mistake: only whether it was a Fourth Amendment violation.

Legal analysis

Both sides here actually have pretty good arguments from precedent for their positions. The Court has previously held that cops don’t have to predict that a law might later be held unconstitutional: they can enforce laws as they’re written, without worrying whether the laws are valid or not (“with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws”). That case has various logic in it that cuts strongly in favor of North Carolina, but also a few parts that arguably exclude mistakes of law from consideration. Another, more recent case, Ornelas v. United States cuts the other way. And various other cases lend support to each side.

There’s enough evidence in case law to support each side that it’s hard for me to fault a judge for coming down on either side here, on the basis of case law. I think that says something about the case law, to be honest.

Rather, what seems stronger to me ultimately is the common law presumption that “ignorance of the law is no excuse”. If you violate the law, you’re still guilty even if you didn’t know the law. Heien beats on this point pretty hard: that it’s unfair to punish someone for a law he didn’t know about, but it’s okay for a cop to stop someone for an offense that doesn’t actually exist because of what, ultimately, is ignorance of the law. North Carolina and the United States try to distinguish this by saying that a cop who breaks a law he doesn’t know about is held to it as much as a normal person. But this on-the-job, off-the-job wax-on, wax-off argument is way too cute for me.

The Court building, again; it appears from lack of netting that they’ve finished renovating the sculpture work just under the roof

Oral argument

Going into oral argument I didn’t have much sense how things might turn out. The common law rule seemed like it might speak to some at the Court. But the shining ideal of the exclusionary rule we’re all familiar with, has been steadily chipped away at for several decades. That chipping continues with the current Court. That general trend didn’t bode well for Heien.

I counted a few votes that looked fairly likely for Heien — Sotomayor pretty strongly, Ginsburg and Kagan to lesser extents. Roberts pushed about equally hard on each side in questioning. The rest seemed somewhat more in opposition to Heien than to North Carolina. Heien’s side got more pushback in oral argument than either North Carolina or the United States, all things considered. But the most striking part of argument was how it took multiple turns for the bizarre.

Justice Scalia asked why Heien wasn’t pushing for mistake of law triggering no good faith exception, in addition to it being a Fourth Amendment violation. This despite the presence of North Carolina’s non-recognition making the point irrelevant. He seemed to think the two questions were inseparable and had to be answered together. Which is a fair question — when deciding whether to review the case. But the Court took the case to answer only the one question, whether there was a Fourth Amendment violation, leaving the question of the remedy for such violation to another day. And the Court can’t really decide the question of remedy here, because it’s irrelevant to Heien and thus is not a “case or controversy” that the Court is empowered to decide here. I claim no knowledge of precedents, but it seems really unlikely to me (and Heien’s counsel had ready examples) that the Court hasn’t half-decided an issue like this before.

Meanwhile, Justice Alito wondered why North Carolina could get away without having a good faith exception: why weren’t they held to the federal rule? Which is an interesting question. But first, that question wasn’t accepted for argument, or argued below. And second, I thought Pruneyard Shopping Center v. Robins allowed states to interpret their constitutions (as North Carolina has done) to more strongly protect rights than federal courts would. (We might suppose from this that Justice Alito is rather a fan of the good faith exception [he said, understatedly, because Justice Alito is generally known to defend the police much more often than not].)

Finally, a few justices (Ginsburg, Alito, Kennedy) asked questions along the lines of, “If there was consent to search, given after the traffic stop had ended as a Fourth Amendment seizure, doesn’t that make the evidence admissible?” To which the clear answer, fruit of the poisonous tree (there is no chance to ask for consent to search, if there is no mistake-of-law stop), seemed so obvious to me as a decently-read non-lawyer (and to a couple other knowledgeable lawyers I talked to after argument), that clearly those justices were missing something really obvious. Or that law is less settled than I thought. (Which is entirely possible. But see the lawyers’ reactions.) But in any case it wasn’t the question presented, and wasn’t an argument North Carolina made in lower courts.

Predictions

Given the thoroughly strange turns in argument, I’m really unsure what’ll happen. The Court could dismiss the case as “improvidently granted”, because it’s not worth answering the Fourth Amendment question without also answering whether a good faith exception also applies, and they flat-out screwed up accepting the case. In which case, everyone wasted their time. 🙂 The Court could answer the original question as saying there is a Fourth Amendment violation, then “somehow” also manage to answer the good faith question that was never seriously argued before — despite it not being relevant because of North Carolina jurisprudence. Or they could vote for North Carolina. But there was enough random confusion that it’s hard to guess much about who might win.

So in the end…yeah, I dunno. I don’t see any reason why the Court can’t decide for Heien or for North Carolina, and maybe in conference the justices can collectively learn enough to see why that’s so. Some of them clearly weren’t there yet, at the start of the day. Where they go from there, also unclear. I’m guessing the odds are still against Heien, but I could easily be wrong.

Other random observations

I arrived in line early enough (about 05:20) to receive card #11, solidly within the first fifty people in the public line to get a seat. (I think there were only actually eight people in front of me, and a few numbers got skipped.) This was a much better showing than the last Fourth Amendment case I attended, where I arrived at something like 02:00 and wasn’t joined by anyone else til 06:15. Just ahead of me was the man who’s attended the last twenty-five opening days, and a couple friends of his.

Eleventh (actually ninth, but that early it doesn’t matter)

In front of them was a rather unusual delegation: several people from the North Carolina police department that had seized Heien, including Sergeant Darisse himself! (North Carolina apparently only received six seats at oral argument, which presumably all went to the attorney general’s office. That’s surprisingly stingier than I’d have expected.) I imagine watching a case from that vantage point would be…kind of mind-boggling, actually. I asked about a picture, but occasional undercover work precluded it. 🙁 No idea whether Heien himself was at the Court — apparently he finished serving his sentence, or at least is out now, so he might have been there. Of course, as actual party (as opposed to merely the agent of a party) he presumably would have no trouble attending.

In other associated mild celebrity meetings, I got to meet Orin Kerr of the Volokh Conspiracy, and very briefly (I didn’t introduce myself, just was present as he and Orin briefly talked after leaving the Court) Jeffrey Fisher of Stanford, most recently known for having successfully argued Riley v. California, the cell phone search case from last term.

Conclusion

In the end it seems almost commonsense to me that when you’re breaking no law, and there’s no confusion that you might possibly have been breaking the law in its actual meaning, you should be safe against searches and seizures. (Note that a mistaken understanding of facts, in contrast to a mistaken understanding of the law, doesn’t invalidate a search or seizure. For example, suppose someone liked having “fun” playing a recording of a woman’s screams in his back yard. It should be totally justified for a cop to investigate that, even if the facts are that no domestic violence or other crime is being committed.) Ignorance of the law should apply equally to everyone, and not differently to a cop acting to enforce what turns out not to be the law.

But it’s a long line of cases that have lent support to the notion that searches and seizures not consistent with the law, as ultimately interpreted by the courts, can still produce fruits for investigations and prosecutions. And so eventually we reach the point where someone can be detained for not violating the law identified as the reason for the seizure, and it’s a legitimate question whether the seizure is reasonable or not.

I don’t agree with the retired Justice Stevens on a number of issues. But in this case, judging by his dissent in United States v. Leon, I wish he were still voting on the Court.

(And, as always — and particularly here, because Fourth Amendment law is very clearly not a thing quickly or easily understood, and I am still only scratching the surface in my knowledge of it — please point out any mistakes I’ve made in my discussion here. 🙂 )